August 9, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 09 CR 814-1 - Amy
J. St. Eve, Judge.
Bauer, Posner, and Sykes, Circuit Judges.
POSNER, Circuit Judge.
Harrington is a former client of the well-known Chicago-based
criminal defense lawyer Beau Brindley, who last year was
acquitted in a bench trial presided over by Judge Leinenweber
of the Northern District of Illinois of charges that Brindley
had encouraged Harrington, a drug dealer, and other clients
to lie on the stand during their criminal trials. Harrington
managed to elude conviction in his own trial, but having
pleaded guilty to other charges was sentenced by Judge St.
Eve, also of the Northern District of Illinois, to 264 months
in prison, subsequently reduced because of a retroactive
change in the Sentencing Guidelines to 212 months.
over a year after Harrington was sentenced, the government
asked for his cooperation in its investigation of Brindley.
After meeting with prosecutors several times, he testified as
a government witness first before the grand jury and then for
an entire day during Brindley's two-week trial. Despite
Brindley's acquittal the government filed a motion under
Federal Rule of Criminal Procedure 35(b)(2)(C) asking Judge
St. Eve to reduce Harrington's sentence by 25 percent as
a reward for his substantial assistance in investigating and
prosecuting Brindley. But the judge granted only a 14 percent
reduction, precipitating this appeal by Harrington. Rather
oddly, as it seems to us, in this court the government is
defending Judge St. Eve's rejection of its request for a
larger reduction-not because it is convinced by her reasons
(which are, as we're about to see, vulnerable to
criticism), but because it thinks she has the ultimate
authority to decide how much of a sentencing reduction to
give a cooperating witness.
appeal pivots on the judge's explanation at the
resentencing hearing for why she was rejecting the
government's request for the larger reduction. She said:
The motion was made under Rule 35, which leaves it to the
Court's discretion, if substantial assistance was
provided, whether or not to grant a motion for a downward
The substantial assistance-nothing I am saying is suggesting
that you [one of the prosecutors] did not believe Mr.
Harrington was telling the truth. So, I fully believe that
you and the other prosecutors believed Mr. Harrington was
telling the truth.
Judge Leinenweber, who is one of the finest trial judges in
this building, found that the government had not met its
burden of proof. And I think implicit in that is that Mr.
Harrington's testimony didn't establish beyond a
reasonable doubt that Mr. Brindley and his co-defendant had
committed the crimes that they were charged with.
I recognize-and I have not seen the transcript, but based on
what you are saying, I recognize-that Judge Leinenweber did
not make any negative findings and did not find that you, Mr.
Harrington, had lied in his courtroom.
As I made fully known to you when you first presented this
motion, it concerns me that you are asking now for a benefit
for Mr. Harrington having lied to this Court during his
trial. I respectfully disagree with you when you say, well,
everybody has a crime when they come in on a Rule 35 and this
is no different than that, because certainly everybody has
the underlying crime that they are convicted of; but, this
goes above and beyond. In this courtroom, he came in, in
addition to the underlying drug crime, and lied to the Court
when he was testifying.
I also gave Mr. Harrington the benefit of the doubt during
the original sentencing hearing. The probation officer and
the government both asked for an obstruction of justice
enhancement and a two-level enhancement. And I think I made
clear at the sentencing that I could have given that, but I
did not. So, you got the benefit of that, which, given your
statements now, you certainly were not entitled to. So, that
gives me concern.
Having said that, I recognize that there is value to
encouraging cooperators to come forward when they are in this
situation; and, I recognize there is value to the government
in being able to offer deals and potential lower sentences to
individuals who are willing to come forward to help with
I will grant your motion, but I am not granting it in full. I
am not giving, for the reasons I have just articulated, the
full amount that you ...